Prop 30 should have been 30-something, court says

It turns out, according to a state appeals court, that Proposition 30, Gov. Jerry Brown’s tax initiative, should have had a higher number and a lower spot on the November ballot — call it Prop. 30-something. It doesn’t matter now, with the election over, the new taxes in effect and California in the unusual posture of having a nearly balanced budget. But it seemed to matter a lot last summer, when Brown and his foes were jockeying for position.

With 11 measures slated for the statewide ballot, the usual procedure would have been to number them in the order they qualified. Brown’s initiative, to raise $6 billion a year by increasing income taxes for upper-income Californians and boosting the sales tax by a quarter cent, was the ninth to have its signatures certified, according to state elections officials. That would have labeled it Proposition 38.

But the governor and his allies feared that voters would lose interest, or perhaps their willingness to support higher taxes, by the time they reached the bottom of the ballot. So they drafted a bill last June declaring that constitutional amendments — like Brown’s initiative — and bond measures should have the top spots on the ballot “because of the profound and lasting impact these measures can have on our state.”

But Democrats lacked the two-thirds majority that’s usually needed for a bill to take effect immediately rather than the following January, which would have been too late. The only exception is the state budget, which needs only a majority vote under an initiative that passed in June, and any measures related to the budget. So Democratic leaders latched onto one of the “spot” bills — legislation introduced earlier with only a bill number and no content — fleshed it out with the change in ballot measure designations, and declared it to be related to the budget, which had passed 10 days earlier. The bill zipped through the Legislature in two days, and presto, Brown’s initiative became Prop. 30.

The maneuver was challenged unsuccessfully by attorney Molly Munger, sponsor of a rival income tax initiative — which, as Prop. 38, was voted down in November. The conservative Howard Jarvis Taxpayers Association jumped in and asked an appeals court to stop the renumbering, without success.

But on Friday, the same court, the Third District Court of Appeal in Sacramento, said the entire procedure had been a “shell game” that shouldn’t have affected the ordering of the ballot measures.

The only bills that are entitled to be considered “budget-related,” and eligible to take effect immediately by a majority vote, are those that are already identified in the budget when it’s passed, said Justice Vance Raye in the 3-0 decision. That can’t be the case, he said, when legislators take up a previously empty bill and add content to it only after the budget passes, which is what happened in this case.

With the election come and gone, the court awarded the Howard Jarvis group the consolation prize of state payment of its court costs, and a ruling prohibiting the same thing from happening again.

Prop. 30 wound up with a 55.4 percent majority, winning by more than 1.3 million votes, so the ballot order probably didn’t affect the outcome.

“Unfortunately, the Legislature and the governor got away with one,” said Thomas Hiltachk, a lawyer for the Jarvis association. At least, he said, the ruling will require lawmakers to draft all budget-related bills by the time they enact the budget if they want to pass them by majority vote — something the Democrats may not need, at least for now, as they hold two-thirds majorities in both houses.

Frederick Woocher, a lawyer for the Legislature’s Democratic leaders, said the ruling appears to be fairly narrow and lawmakers should be able to comply. Devotees of legislative procedures can read the court’s handiwork here: www.courts.ca.gov/opinions/documents/C071506.PDF.